Posts tagged tort

Carleton moves to dismiss claims of anti-abortion activists

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The Ottawa Citizen reported last week that Carleton University, which is being sued by two anti-abortion student activists for shutting down an unauthorized protest on campus, has asked the court to toss out the students’ lawsuit on the basis that they did not disclose a reasonable cause of action – i.e. the claim is frivolous, vexatious, etc. 

This sort of application is available to defendants who think the claim against them does not meet the minimum threshold necessary to justify using the court’s resources.  Occasionally, it is brought up when the defendant feels their pursuer is using law as a public relations tool or for a malicious purpose, without actually having a truly legitimate issue to explore in court.  In these situations, it would be a shameful waste on everyones’ time and money to let the legal fight continue.

Universities consistently make this application when confronted by lawsuits from students in the hopes that it will end the dispute shortly after the starting line (see here for more on this).  The usual argument from the university is that the dispute is an internal, private one and – parenthetically – the claim against it is silly anyways. 

In terms of Carleton, these are the claims made by the students that form the basis of the lawsuit:

  1. Carleton broke its own internal policies related to academic freedom.
  2. Carleton broke its fiduciary duties to students to provide an environment for free and open debate.
  3. Carleton had the students wrongfully arrested.
  4. Carleton broke its contract with the students by not protecting their right to free expression on campus.
  5. Carleton infringed many of the students’ rights under the Charter.

The university appears to have responded to each of these points in the legal documents, but the most interesting issue is whether this is, in fact, an internal matter between private parties.  If the students in this case have rights under the Charter against the university, then it means at least for the purposes of free speech the university is a governmental actor (ala the Pridgen decision in Alberta).  The dispute, then, would be private citizens vs. government actor, and not private citizens vs. private institution, the latter being more likely to be dismissed at this stage. 

Ontario Superior Court Justice Giovanna Toscano Roccamo has not yet revealed her decision on the university’s application.

Ontario court declines to characterize student grievance with U of O as contractual dispute

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Should the courts have the authority to resolve academic disputes between students and their universities?

On the one hand, everyone deserves to have their dispute heard by a competent adjudicator, particularly students who feel they have been wronged by their educational institutions.  If the courts don’t have the power to intervene in academic affairs when a true injustice has occurred, then what is the point of the court system and how else can a student expect to get a fair shake when dealing with a large organization like  a university?  On the other hand, if judges were expected to devote court resources to every student who didn’t the grade they felt they were entitled to on a mid-term, they would never see the light of day.  And it would prevent other, perhaps more important disputes from being addressed urgently.

It costs a lot to run a court system, but judicial efficiency is only part of the picture.  If students were told to take it to court every time they had a beef with a professor, then that wouldn’t do much good for the vast majority of students who wouldn’t have the time or the money to see it through.  The same would go for university resources, which would be overstretched.  On top of this, judges might find themselves having to make a decision about some complex area of study that they slept through or had absolutely no interest in during their own university days.

For these and other reasons, courts have repeatedly drawn a fine across what the types of disputes arising from university affairs they devote their attention to, and instead have encouraged universities to devise a system of internal procedures for allowing students to be heard without needing to march down to the courthouse.  The basic rules are set out in this post, but I will summarize them as follows: anything related to purely internal matters, like a claim about an academic issue (e.g. the decision of a PhD panel), must be reviewed by internal university bodies first, and only if there is a significant unfairness in those proceedings will the courts take a look and perhaps impose a different decision.  Claims about a university breaking its contract with a student, about a university’s negligence causing harm to a student – those items will get the full attention of the courts, as if the contract or tort was set in any other context.  In those cases, the thinking goes, the university has less specialized knowledge and is acting more like any other party in a common dispute.

The Ontario Superior Court of Justice released a judgment last month in Karam v. University of Ottawa (CanLII) that briefly touches on many of these issues.  The student in this case was hoping to graduate with a Bachelor of Commerce and a specialization in accounting, which requires that he get a certain grade point average in accounting courses.  The dispute turned on whether a particular course did or did not qualify as an accounting course.  The student, in one corner, felt that it was, in fact, an accounting course, and his grade in the course entitled him to the specialization in accounting.  The university, in the other corner, felt that the course did not make the cut, and despite the student’s grade the specialization was not deserved.

The student took the matter to the University of Ottawa Senate Appeals Committee, which is empowered to review and deal with these sorts of decisions, and it found in favour of the university.  The student sought judicial review (Wikipedia) of the decision; a “judicial review” is a type of lawsuit that invites a court to review the decision of a government agency or administrative tribunal with variable levels of scrutiny, which range depending on how much deference the agency or tribunal is entitled to.  In particular, the student claimed this was a decision about whether the university had honoured their contract, which should attract a high level of scrutiny by the courts and relatively little deference, while the university claimed this was about a basic academic issue (i.e. when to award a certain degree), and little scrutiny and much deference should be applied.

The student failed:

The applicant submits that his entitlement to be awarded a degree with accounting specialization is substantially a contractual issue, thus attracting a correctness standard of review.  We disagree.  We accept the respondent’s argument that a substantive decision of a university body on an academic matter (in this case, entitlement to be awarded a degree), if it is open to review at all, is to be accorded very significant deference.  The standard of review is reasonableness.

In our opinion, the record before this Court amply demonstrates the reasonableness of the respondent’s decision that the applicable university regulations justify the original decision of the business school, upheld by the appeals committee, that the ADM 4311 course was not an accounting specialization course and was not eligible for inclusion in the minimum grade point average calculation.  Even if the applicant was correct in his position that the degree requirements, or explanatory information on the university website, was unclear or contained an element of ambiguity on this issue, it was for the Appeals Committee to rule on the applicant’s entitlement to be awarded the specialized degree, provided that its decision was reasonable.  As noted, we are of the view that the committee’s decision was reasonable.Jud

Judgments like Karam are important for students and universities to consider when deciding on how to deal with a grievance that does not appear to have been settled with the decision of an internal university body.

Anti-abortion activists sue Carleton over arrest

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The CBC reported recently that two of the anti-abortion activists arrested at Carleton University in the fall for engaging in an unauthorized protest on campus space have filed a lawsuit against the university.

According to the students’ legal documents (CBC), the students allege that Carleton’s refusal to allow a particular anti-abortion display to be presented in a central area of campus in the first place, and then having them arrested when several students went ahead and set up the display there anyways, amounted to discrimination that caused damage.  The students claim the following against the university:

  1. Carleton broke its own internal policies related to academic freedom.
  2. Carleton broke its fiduciary duties to students to provide an environment for free and open debate.
  3. Carleton had the students wrongfully arrested.
  4. Carleton broke its contract with the students by not protecting their right to free expression on campus.
  5. Carleton infringed many of the students’ rights under the Charter.

The students also named four university administrators as personal, rather than institutional, defendants, claiming they were  negligent in the performance of their duties.

This covers off nearly every possible conventional legal claim a student may bring against their university, namely contract, tort, breach of fiduciary duty, etc.  The only one missing is judicial review, which arises when a student pursued an opportunity to overturn a university decision through internal university bodies.  A claim based on the Charter is relatively novel in this context (see this post on the Pridgen decision).

We will see how far this one goes.

SCC balks on two student grievance cases against universities

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The Supreme Court of Canada announced this morning that it has dismissed separate applications by two students in claims against their universities for leave to appeal (Wikipedia) respective decisions of the Ontario Court of Appeal, each of which were discussed previously on this blog.  Both of the appellate court decisions are powerful statements on the approach of courts to student grievances and, more precisely, the limits of the jurisdiction of judges when confronted by a student claimant:

  1. In Gauthier c. Saint-Germain (CanLII), a graduate student in education at the University of Ottawa sued the university and her two thesis supervisors, alleging that her initial supervisor promised her a scholarship, acted inappropriately, negligently supervised her work and caused her mental distress, and claiming that her new supervisor was incompetent.  Additionally, she argued that the university breached her contract by not providing competent faculty.  The university responded that the court did not have jurisdiction to hear the student’s claim because it was essentially an academic issue to be resolved within the university’s internal processes.  The university won before the motions judge but lost at the appellate level, where the Ontario Court of Appeal found that the grievance could properly proceed within the jurisdiction of the court because it involved a claim in tort and contract, even though it arose from academic matters.
  2. In Jaffer v. York University (CanLII), a student with Down Syndrome claimed York University failed to properly accommodate his disability.  Similar to the student in Gauthier, Jaffer framed his arguments in terms of tort and contract; the Ontario Court of Appeal agreed that the court had jurisdiction because of how the claims were framed but held that the legal documents filed by the student (at least in their current condition) showed that the claims were untenable.

The issue at the heart of these cases - to what extent are disputes between students and universities involving academic matters beyond the jurisdiction of the courts – has been subject to a series of judgments over the decades that have left students and university administrators with a confused sense of the boundaries of the “internal autonomy” of universities.   These decisions, along with Nazik Amdiss and University of Ottawa, Ltd. (CanLII), indicate a renewed interest on the part of the courts to assert jurisdiction over student grievances when they are properly pleaded in tort or contract, despite the connection to academics.

None of the universities in these cases really got what they wanted, namely a declaration by the courts that despite the increasing integration of university life and mainstream society the traditional autonomy granted to universities to manage disputes related to academic affairs should be maintained.  Many (see, for example, McMillan LLP’s case comment here) had hoped for the Supreme Court of Canada to hear appeals to these decisions and clarify the line that should be drawn, but no such luck.

Pigs, educational malpractice and other things that don’t fly

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It is the king of white elephants.  Lawyers, doctors, accountants and other professionals spend much of their average day staring it in the face.  It impacts how they speak to people, what they ask and when they choose to retreat.  They are so used to it hanging around that they treat it like a sibling they don’t like but can’t ignore.  

That’s right – malpractice.  (If you guessed “money”, you get half a point.) 

Malpractice is a legal claim you can make in tort (wikipedia) against a professional, alleging that they owed you a duty (i.e. to provide reliable legal services) but failed to satisfy that duty according to accepted professional standards, and you suffered an injury as a result of that failure.  Part of the reason lawyers, doctors and accountants are constantly trying to do a good job is because if they make a mistake it means a phone call to their insurance company and a possible claim of malpractice that can end their career. 

Interestingly, while teachers also marshall an expertise that may significantly influence individuals for better or worse, malpractice has not been applied to them.  Of course, educational institutions can be made liable for negligent acts or omissions of their employees (e.g. if a gym teacher lets kids play a sport recklessly), but the term “educational malpractice” refers to a distinct type of failure that is essential to the function of educators.  In Hozaima v. Perry et al (CanLII), the Manitoba Court of Queen’s Bench set out this view:

Educational malpractice is a term that is used in some of the jurisprudence and refers to the potential liability of educational institutions for their failure to educate their students.  The concept of educational malpractice in the form of liability for failure to educate first started as a concept in the United States in the mid-1950s, but a broad duty of care of that nature was stifled very early on the grounds of public policy due to the difficulty of proof necessary to show acceptable standards of care for classroom methodology, as well as the socio-economic consideration that would create too great a public burden in time and money for the system…  However, in Janisch, H.N., “Education Malpractice: Legal Liability for Failure to Educate” (1980) The Advocate, Vol. 38 at 491, Professor Janisch foresaw the possibility of a limited extension of the liability of universities for the quality of the educational experience offered their students.  This he foreshadowed might occur in contract and in an extension of the fiduciary duty.  He also foreshadowed the possibility of liability of individual professors (see p. 498). 

Many students at every educational level complain about their teachers.  Many people can likely recall one or two teachers that, frankly, just stank at what they did, and we like to blame them for our knowledge inadequacies as adults.  But there is, and should be, a world of difference between disliking a teacher’s style or being disappointed with their level of effort and being able to sue them or the school for those qualities.  The arguments against allowing someone to base a claim in tort on educational malpractice is that it is difficult to demonstrate precisely what a teacher should have done differently and what injury the student suffered as a result.  As well, schools would constantly be in court, or be worried about being dragged to court, if every student who never understood algebra could call a lawyer to have them send their grade 7 teacher a demand letter.

This view, in somewhat more sophisticated terms, currently prevails in Canadian courts.  Many Canadian cases on the subject are based on two American decisions: 

  1. Peter W. v. San Francisco Unified School District et al: where a student claimed his school didn’t recognize his learning disabilities, put him in higher classes without realizing that he couldn’t read the materials, allowed him to graduate high school even though he could only read at a grade 8 level, and so on.  The California Court of Appeals rejected his claim for the reasons mentioned above.
  2. Donohue v. Copiague Union Free School District: where a similar claim was advanced, with a similar response from the New York Court of Appeals.

These cases were both decided in the late 1970s.  Since then, courts in both the United States and Canada have rejected claims against school authorities in tort related to the quality of education.  As a result, whenever a claim is launched against a educational institution that seems conceptually similar to educational malpractice, one of the defences is that the claim should be struck because educational malpractice is not actionable (i.e. it cannot be the basis of a lawsuit) – here are examples from the University of Ottawa and the University of Manitoba (CanLII). 

Nonetheless, there have been arguable cracks in the consensus that indicate some possibility of Canadian courts accepting educational malpractice in the future.  For example, in Gould v. Regina (East) School Division No. 77 (CanLII), the Saskatchewan Queen’s Brench commented that if a teacher’s conduct was so offensive to community standards such a claim could be entertained: 

It is surely not the function of the courts to establish standards of conduct for teachers in their classrooms, and to supervise the maintenance of such standards.  Only if the conduct is sufficiently egregious and offensive to community standards of acceptable fair play should the courts even consider entertaining any type of claim in the nature of educational malpractice. 

As well, there have been several cases in which a court refused to dismiss a claim involving educational malpractice where the allegation involved a failure of the educational institution to deliver what it had promised.  For example, if the school advertises a degree can be obtained in two years, there is a risk a student could sue if that turns out not to be true.  See here and here (CanLII).  These and similar decisions deal with a court’s refusal to dismiss a claim rather than a substantive decision on the merits; allowing a lawsuit to proceed because it may not be a waste of time is different from agreeing with the plaintiff’s case.  So, educational malpractice still has a long way to go.  Here is an article from Paul Howard, an education law expert at Shibley Righton LLP, with an interesting take on educational malpractice. 

The lessons, if any, that can be drawn from the judicial treatment of educational malpractice are limited since no court in North America has accepted the tort.  Nonetheless, there does appear to be some flexibility with regards to student claims involving contracts and misrepresentation by an educational institution.  As a result, schools, particularly universities, must review any representations they make to ensure that they can deliver on what they promise.

When a teacher’s conduct crosses the line between incompetent and negligent

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It has now been over two months since the pep rally at Winnipeg’s Churchill High School, when teachers Chrystie Fitchner and Adeil Ahmed’s lapdance (link to National Post) effectively terminated their careers in education.  Their story made national headlines and reminded parents across the country that teachers, like people in any other profession, can jump over the line between acceptable and unacceptable conduct.

Teachers, like parents, are confronted every day with the opportunity to make mistakes that leave long-term effects on the children in their care.  But nobody is perfect and anybody can have an off day.  Fortunately, the courts have established a relatively clear standard for determining when a teacher’s incompetence or error will actually result in legal consequences.

In 1998, Devon Hussack was a 13 year old Chilliwack middle school student who had never played field hockey before.  One day, his physical education teacher encouraged him to join a game, hoping that his participation would curb his chronic absenteeism.  Hussack was accidentally whacked in the face with a stick - hard.  He began suffering from headaches, dizziness, etc., and now he rarely leaves his home.  The injuries caused by the hit have left him unable to complete many tasks on his own.

Hussack sued the school district, claiming the teacher had failed to prepare him gradually for the sport; by encouraging (or even permitting) him to participate he exposed him to the unreasonable likelihood of injury.  The school board responded the teacher did his job well, and regardless Hussack’s injuries were the result of pre-exising conditions.

Did the teacher somehow fail to protect Hussack from a dangerous sport, or did he in fact do everything he should have in light of his obligations?  How can we determine whether he used the appropriate caution?  In Hussack v. School District No. 33 (Chilliwack), the British Columbia Supreme Court referred to a standard of a “careful or prudent teacher” that involves the following test:

Four major criteria are considered as part of the test, namely (a) whether the activity was suitable to the age and mental and physical condition of the student; (b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger; (c) whether the equipment was adequate and suitably arranged; and (d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.  

Similarly, in Myers v. Peel (County) Board of Education, the Supreme Court of Canada emphasized that a teacher’s conduct must be evaluated on a case-by-case basis:

[The standard's] application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the student may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent-standard to the conduct of the school authority in the circumstances.

Regarding Hussack, the court found that the teacher’s failure to provide him with gradual training prior to participating in the game led to the likelihood that Hussack would get hurt.  Even though he had considerable hockey experience, in this case that experience – left unrestrained by his teacher – led Hussack to apply different expectations to the game and precipitated the injury.

Parents may be interested in considering a legal recourse if their children get hurt at school during what they see as a lapse in judgment by a teacher.  But before considering whether a teacher’s conduct should result in legal consequences, parents should review the principles underlying the standard of a “careful or prudent teacher”.

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